Exhibit 99(i)
MELLON
SUBSCRIPTION & INFORMATION AGENT AGREEMENT
THIS SUBSCRIPTION AGENT AGREEMENT (this "Agreement") between Xxxxx
Corporation, an Indiana corporation (the "Company") and Mellon Bank N.A., a
Pennsylvania company ("Mellon"), is dated as of _______________.
1. APPOINTMENT
(a) The Company is making an offer (the "Subscription Offer") to issue to
the holders of record of its outstanding shares of Common Stock par value
$______ per share (the "Common Stock"), at the close of business on _______ (the
"Record Date"), the right to subscribe for and purchase (each a "Right") shares
of Common Stock (the "Additional Common Stock") at a purchase price of ______
per share of Additional Common Stock (the "Subscription Price"), payable by
cashier's or certified check, upon the terms and conditions set forth herein.
The term "Subscribed" shall mean submitted for purchase from the Company by a
stockholder in accordance with the terms of the Subscription Offer, and the term
"Subscription" shall mean any such submission.
(b) The Subscription Offer will expire at ______, New York City Time, on
_________ (the "Expiration Time"), unless the Company shall have extended the
period of time for which the Subscription Offer is open, in which event the term
"Expiration Time" shall mean the latest time and date at which the Subscription
Offer, as so extended by the Company from time to time, shall expire.
(c) The Company filed a Registration Statement relating to the Additional
Common Stock with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, on ___________. Said Registration Statement was
declared effective on _____________. The terms of the Additional Common Stock
are more fully described in the Prospectus forming part of the Registration
Statement as it was declared effective, and the accompanying Letter of
Instruction. Copies of the Prospectus, the Letter of Instruction and the Notice
of Guaranteed Delivery are annexed hereto as Exhibit 2, Exhibit 3 and Exhibit 4,
respectively. All terms used and not defined herein shall have the same meaning
as in the Prospectus. Promptly after the Record Date, the Company will provide
Mellon with a list of holders of Common Stock as of the Record Date (the "Record
Stockholders List").
(d) The Company hereby appoints Mellon to act as subscription agent (the
"Subscription Agent") and information agent (the "Information Agent") for the
Subscription Offer in accordance with and subject to the following terms and
conditions.
2. SUBSCRIPTION OF RIGHTS
(a) The Rights are evidenced by transferable subscription certificates
(the "Certificates"), a copy of the form of which is annexed hereto as Exhibit
5. The Certificates entitle the holders to subscribe, upon payment of the
Subscription Price, for shares of Additional Common Stock at the rate of one
share for each three Rights evidenced by a Certificate (the "Basic Subscription
Privilege"). No fractional shares will be issued, but the Subscription Offer
includes a step-up privilege entitling the holder of a Certificate or
combination of Certificates evidencing fewer than three Rights, or a total
number of Rights not evenly divisible by three, if said holder fully exercises
the Certificate or Certificates accompanying the Subscription Offer, to
subscribe and pay the Subscription Price for one full share of Additional Common
Stock in lieu of a fractional share without furnishing any additional Rights
(the "Step-up Privilege"). Reference is made to the Prospectus for a complete
description of the Basic Subscription Privilege and the Step-up Privilege.
(b) Further, the Subscription Offer provides that subscribing
shareholders, and only those subscribing shareholders who exercise their Rights
in full, may exercise an Over-subscription right as more fully described in the
Registration Statement. Mellon shall, after the initial allocation of Additional
Common Stock to those shareholders exercising their Basic Subscription Right,
allocate any remaining Basic Subscription, as more fully described in the
Registration Statement.
3. DUTIES OF SUBSCRIPTION AGENT
As Subscription Agent, Mellon is authorized and directed to:
(a) Issue the Certificates in accordance with this Agreement in the names
of the holders of the Common Stock of record on the Record Date, keep such
records as are necessary for the purpose of recording such issuance, and furnish
a copy of such records to the Company. The Certificates may be signed on behalf
of the Subscription Agent by the manual or facsimile signature of a Vice
President or Assistant Vice President of the Subscription Agent, or by the
manual signature of any of its other authorized officers.
(b) Promptly after Mellon receives the Record Stockholders List, Mellon
shall:
(i) mail or cause to be mailed, by first class mail, to each holder
of Common Stock of record on the Record Date whose address of record is
within the United States and Canada, (i) a Certificate evidencing the
Rights to which such stockholder is entitled under the Subscription Offer,
(ii) a copy of the Prospectus, (iii) a Letter of Instruction, (iv) a Notice
of Guaranteed Delivery and (v) a return envelope addressed to the
Subscription Agent; and
(ii) mail or cause to be mailed, by air mail, to each holder of
Common Stock of record on the Record Date whose address of record is
outside the United States and Canada, or is an A.P.O. or F.P.O. address (i)
a copy of the Prospectus, (ii) a Notice of Guaranteed Delivery and (iii) a
Letter of Instruction (different from the Letter of Instruction sent to
stockholders whose address of record is within the United States and
Canada). Mellon shall refrain from mailing Certificates issuable to any
holder of Common Stock of record on the Record Date whose address of record
is outside the United States and Canada, or is an A.P.O. or F.P.O. address,
and hold such Certificates for the account of such stockholder subject to
such stockholder making satisfactory arrangements with the Subscription
Agent for the exercise or other disposition of the Rights evidenced
thereby, and follow the instructions of such stockholder for the exercise,
sale or other disposition of such Rights if such instructions are received
at or before 11:00 a.m., New York City Time, on .
(c) Mail or deliver a copy of the Prospectus (i) to each assignee or
transferee of Certificates upon receiving appropriate documents to register the
assignment or transfer thereof and (ii) with certificates for shares of
Additional Common Stock when such are issued to persons other than the
registered holder of the Certificate.
(d) Accept Subscriptions upon the due exercise (including payment of the
Subscription Price) on or prior to the Expiration Time of Rights in accordance
with the terms of the Certificates and the Prospectus.
(e) Subject to the next sentence, accept Subscriptions from stockholders
whose Certificates are alleged to have been lost, stolen or destroyed upon
receipt by Mellon of an affidavit of theft, loss or destruction and a bond of
indemnity in form and substance satisfactory to Mellon, accompanied by payment
of the Subscription Price for the total number of shares of Additional Common
Stock Subscribed for. Upon receipt of such affidavit and bond of indemnity and
compliance with any other applicable requirements, stop orders shall be placed
on said Certificates and Mellon shall withhold delivery of the shares of
Additional Common Stock Subscribed for until after the Certificates have expired
and it has been determined that the Rights evidenced by the Certificates have
not otherwise been purported to have been exercised or otherwise surrendered.
(f) Accept Subscriptions, without further authorization or direction from
the Company, without procuring supporting legal papers or other proof of
authority to sign (including without limitation proof of appointment of a
fiduciary or other person acting in a representative capacity), and without
signatures of co-fiduciaries, co-representatives or any other person:
(i) if the Certificate is registered in the name of a fiduciary and
is executed by and the Additional Common Stock is to be issued in the name
of such fiduciary;
(ii) if the Certificate is registered in the name of joint tenants
and is executed by one of the joint tenants, provided the certificate
representing the Additional Common Stock is issued in the names of, and is
to be delivered to, such joint tenants;
(iii) if the Certificate is registered in the name of a corporation
and is executed by a person in a manner which appears or purports to be
done in the capacity of an officer, or agent thereof, provided the
Additional Common Stock is to be issued in the name of such corporation; or
(iv) if the Certificate is registered in the name of an individual
and is executed by a person purporting to act as such individual's
executor, administrator or personal representative, provided, the
Additional Common Stock is to be registered in the name of the subscriber
as executor or administrator of the estate of the deceased registered
holder and there is no evidence indicating the subscriber is not the duly
authorized representative that he purports to be.
(g) Accept Subscriptions not accompanied by Certificates if submitted by a
firm having membership in the New York Stock Exchange or another national
securities exchange or by a commercial bank or trust company having an office in
the United States together with the Notice of Guaranteed Delivery and
accompanied by proper payment for the total number of shares of Additional
Common Stock Subscribed for.
(h) Accept Subscriptions even though unaccompanied by Certificates, under
the circumstances and in compliance with the terms and conditions set forth in
the Prospectus under the heading "SUBSCRIPTION OFFER - Method of Exercising
Rights".
(i) Refer to the Company for specific instructions as to acceptance or
rejection, Subscriptions received after the Expiration Time, Subscriptions not
authorized to be accepted pursuant to this Paragraph 1, and Subscriptions
otherwise failing to comply with the requirements of the Prospectus and the
terms and conditions of the Certificates.
4. DUTIES AS INFORMATION AGENT
In its capacity as Information Agent, Mellon shall:
(a) assist in the coordination of all printing activities and
advertisement placement if required;
(b) establishing contacts with brokers, dealers, banks and other nominees
on the Company's behalf;
(c) determining the material requirements;
(d) assistance with document review;
(e) facilitate the distribution of materials to the registered and
beneficial owners and to other interested parties;
(f) providing a dedicated toll-free line for all shareholder queries;
(g) provide status reporting to Company management; and
(h) facilitate payment of all broker-forwarding invoices, subject to
collection from the Company of monies for this purpose.
5. ACCEPTANCE OF SUBSCRIPTIONS
Upon acceptance of a Subscription, Mellon shall:
(a) Hold all monies received in a special account for the benefit of the
Company. Promptly following the Expiration Time Mellon shall distribute to the
Company the funds in such account and issue certificates for shares of
Additional Common Stock issuable with respect to Subscriptions that have been
accepted. Mellon will not be obligated to calculate or pay interest to any
holder or any other party claiming through a holder or otherwise. It is hereby
agreed immediately following the effective date of the Subscription, immediately
available funds, represented by certified check, money order, or wire transfer
but not personal check, will be deposited with Mellon.
(b) Advise the Company daily by telecopy and confirm by letter to the
attention of Xxxxxx Xxxxx (the "Company Representative") as to the total number
of shares of Additional Common Stock Subscribed for, total number of Rights
sold, total number of Rights partially Subscribed for and the amount of funds
received, with cumulative totals for each; and in addition advise the Company
Representative, by telephone at (000) 000-0000, confirmed by telecopy, of the
amount of funds received identified in accordance with (a) above, deposited,
available or transferred in accordance with (a) above, with cumulative totals;
and
(c) As promptly as possible but in any event on or before 3:30 p.m., New
York City Time, on the first full business day following the Expiration Time,
advise the Company Representative in accordance with (b) above of the number of
shares Subscribed for, the number of Subscription guarantees received and the
number of shares of Additional Common Stock unsubscribed for.
6. COMPLETION OF SUBSCRIPTION OFFER
Upon completion of the Subscription Offer:
(a) Mellon shall requisition certificates from the Transfer Agent for the
Common Stock for shares of Additional Common Stock for which Subscriptions have
been received.
(b) The Certificates shall be issued in registered form only. The Company
shall appoint and have in office at all times a Transfer Agent and Registrar for
the Certificates, which shall keep books and records of the registration and
transfers and exchanges of Certificates (such books and records are hereinafter
called the "Certificate Register"). The Company shall promptly notify the
Transfer Agent and Registrar of the exercise of any Certificates. The Company
shall promptly notify Mellon of any change in the Transfer Agent and Registrar
of the Certificates.
(c) All Certificates issued upon any registration of transfer or exchange
of Certificates shall be the valid obligations of the Company, evidencing the
same obligations, and entitled to the same benefits under this Agreement, as the
Certificates surrendered for such registration of transfer or exchange.
(d) Any Certificate when duly endorsed in blank shall be deemed
negotiable, and when a Certificate shall have been so endorsed the holder
thereof may be treated by the Company, Mellon and all other persons dealing
therewith as the absolute owner thereof for any purpose and as the person
entitled to exercise the rights represented thereby, any notice to the contrary
notwithstanding, but until such transfer is registered in the Certificate
Register, the Company and Mellon may treat the registered holder thereof as the
owner for all purposes.
(e) For so long as this Agreement shall be in effect, the Company will
reserve for issuance and keep available free from preemptive rights a sufficient
number of shares of Additional Common Stock to permit the exercise in full of
all Rights issued pursuant to the Subscription Offer. Subject to the terms and
conditions of this Agreement, Mellon will request the Transfer Agent for the
Common Stock to issue certificates evidencing the appropriate number of shares
of Additional Common Stock as required from time to time in order to effectuate
the Subscriptions.
(f) The Company shall take any and all action, including without
limitation obtaining the authorization, consent, lack of objection, registration
or approval of any governmental authority, or the taking of any other action
under the laws of the United States of America or any political subdivision
thereof, to insure that all shares of Additional Common Stock issuable upon the
exercise of the Certificates at the time of delivery of the certificates
therefor (subject to payment of the Subscription Price) will be duly and validly
issued and fully paid and non-assessable shares of Common Stock, free from all
preemptive rights and taxes, liens, charges and security interests created by or
imposed upon the Company with respect thereto.
(g) The Company shall from time to time take all action necessary or
appropriate to obtain and keep effective all registrations, permits, consents
and approvals of the Securities and Exchange Commission and any other
governmental agency or authority and make such filings under Federal and state
laws which may be necessary or appropriate in connection with the issuance,
sale, transfer and delivery of Certificates or Additional Common Stock issued
upon exercise of Certificates.
7. PROCEDURE FOR DISCREPANCIES
Mellon shall follow its regular procedures to attempt to reconcile any
discrepancies between the number of shares of Additional Common Stock that any
Certificate may indicate are to be issued to a stockholder and the number that
the Record Stockholders List indicates may be issued to such stockholder. In any
instance where Mellon cannot reconcile such discrepancies by following such
procedures, Mellon will consult with the Company for instructions as to the
number of shares of Additional Common Stock, if any, it is authorized to issue.
In the absence of such instructions, Mellon is authorized not to issue any
shares of Additional Common Stock to such stockholder.
8. PROCEDURE FOR DEFICIENT ITEMS
Mellon shall examine the Certificates received by it as Subscription Agent
to ascertain whether they appear to have been completed and executed in
accordance with the applicable Letter of Instruction. In the event Mellon
determines that any Certificate does not appear to have been properly completed
or executed, or where the Certificates do not appear to be in proper form for
Subscription, or any other irregularity in connection with the Subscription
appears to exist, Mellon shall follow, where possible, its regular procedures to
attempt to cause such irregularity to be corrected. Mellon is not authorized to
waive any irregularity in connection with the Subscription, unless Mellon shall
have received from the Company the Certificate which was delivered, duly dated
and signed by an authorized officer of the Company, indicating that any
irregularity in such Certificate has been cured or waived and that such
Certificate has been accepted by the Company. If any such irregularity is
neither corrected nor waived, Mellon will return to the subscribing stockholder
(at its option by either first class mail under a blanket surety bond or
insurance protecting Mellon and the Company from losses or liabilities arising
out of the non-receipt or nondelivery of Certificates or by registered mail
insured separately for the value of such Certificates) to such stockholder's
address as set forth in the Subscription any Certificates surrendered in
connection therewith and any other documents received with such Certificates,
and a letter of notice to be furnished by the Company explaining the reasons for
the return of the Certificates and other documents.
9. DATE/TIME STAMP
Each document received by Mellon relating to its duties hereunder shall be
dated and time stamped when received.
10. TRANSFER PROCEDURES
If certificates representing shares of Additional Common Stock are to be
delivered by Mellon to a person other than the person in whose name a
surrendered Certificate is registered, Mellon shall issue no certificate for
Additional Common Stock until the Certificate so surrendered has been properly
endorsed (or otherwise put in proper form for transfer).
11. TAX REPORTING
Should any issue arise regarding federal income tax reporting or
withholding, Mellon shall take such action as the Company reasonably instructs
in writing.
12. TERMINATION
The Company may terminate this Agreement at any time by so notifying Mellon
in writing. Mellon may terminate this Agreement upon 30 days' prior notice to
the Company. Upon any such termination, Mellon shall be relieved and discharged
of any further responsibilities with respect to its duties hereunder. Upon
payment of all Mellon's outstanding fees and expenses, Mellon shall forward to
the Company or its designee promptly any Certificate or other document relating
to Mellon's duties hereunder that Mellon may receive after its appointment has
so terminated. Sections 13, 14, 15 and 20 of this Agreement shall survive any
termination of this Agreement.
13. AUTHORIZATIONS AND PROTECTIONS
As agent for the Company hereunder Mellon:
(a) shall have no duties or obligations other than those specifically set
forth herein or as may subsequently be agreed to in writing by Mellon and the
Company;
(b) shall have no obligation to issue any shares of Additional Common
Stock unless the Company shall have provided a sufficient number of certificates
for such Additional Common Stock;
(c) shall be regarded as making no representations and having no
responsibilities as to the validity, sufficiency, value, or genuineness of any
Certificates surrendered to Mellon hereunder or shares of Additional Common
Stock issued in exchange therefor, and will not be required to or be responsible
for and will make no representations as to, the validity, sufficiency, value or
genuineness of the Subscription Offer;
(d) shall not be obligated to take any legal action hereunder; if,
however, Mellon determines to take any legal action hereunder, and where the
taking of such action might, in Mellon's judgment, subject or expose it to any
expense or
liability Mellon shall not be required to act unless it shall have been
furnished with an indemnity satisfactory to it;
(e) may rely on and shall be fully authorized and protected in acting or
failing to act upon any certificate, instrument, opinion, notice, letter,
telegram, telex, facsimile transmission or other document or security delivered
to Mellon and believed by it to be genuine and to have been signed by the proper
party or parties;
(f) shall not be liable or responsible for any recital or statement
contained in the Prospectus or any other documents relating thereto;
(g) shall not be liable or responsible for any failure on the part of the
Company to comply with any of its covenants and obligations relating to the
Subscription Offer, including without limitation obligations under applicable
securities laws;
(h) may rely on and shall be fully authorized and protected in acting or
failing to act upon the written, telephonic or oral instructions of officers of
the Company with respect to any matter relating to Mellon acting as Subscription
Agent covered by this Agreement (or supplementing or qualifying any such
actions);
(i) may consult with counsel satisfactory to Mellon, including internal
counsel, and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered, or omitted by Mellon
hereunder in good faith and in reliance upon the advice of such counsel;
(j) may perform any of its duties hereunder either directly or by or
through agents or attorneys and Mellon shall not be liable or responsible for
any misconduct or negligence on the part of any agent or attorney appointed with
reasonable care by Mellon hereunder; and
(k) Are not authorized, and shall have no obligation, to pay any brokers,
dealers, or soliciting fees to any person.
14. INDEMNIFICATION
The Company agrees to indemnify Mellon for, and hold it harmless from and
against, any loss, liability, claim or expense ("Loss") arising out of or in
connection with Mellon's performance of its duties under this Agreement or this
appointment, including the costs and expenses of defending itself against any
Loss or enforcing this Agreement, except to the extent that such Loss shall have
been determined by a court of competent jurisdiction to be a result of Mellon's
gross negligence or intentional misconduct.
15. LIMITATION OF LIABILITY
(a) In the absence of gross negligence or intentional misconduct on its
part, Mellon shall not be liable for any action taken, suffered, or omitted by
it or for any error of judgment made by it in the performance of its duties
under this Agreement. Anything in this agreement to the contrary
notwithstanding, in no event shall Mellon be liable for special, indirect,
incidental or consequential loss or damage of any kind whatsoever (including but
not limited to lost profits), even if Mellon has been advised of the likelihood
of such damages and regardless of the form of action. Any liability of Mellon
will be limited to the amount of fees paid by the Company hereunder.
(b) In the event any question or dispute arises with respect to the proper
interpretation of this Agreement or Mellon's duties hereunder or the rights of
the Company or of any holders surrendering certificates for Shares pursuant to
the Subscription Offer, Mellon shall not be required to act and shall not be
held liable or responsible for refusing to act until the question or dispute has
been judicially settled (and Mellon may, if it deems it advisable, but shall not
be obligated to, file a suit in interpleader or for a declaratory judgment for
such purpose) by final judgment rendered by a court of competent jurisdiction,
binding on all stockholders and parties interested in the matter which is no
longer subject to review or appeal, or settled by a written document in form and
substance satisfactory to Mellon and executed by the Company and each such
stockholder and party. In addition, Mellon may require for such purpose, but
shall not be obligated to require, the execution of such written settlement by
all the stockholders and all other parties that may have an interest in the
settlement.
16. REPRESENTATIONS, WARRANTIES AND COVENANTS
The Company represents, warrants and covenants that (a) it is duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, (b) the making and consummation of the
Subscription Offer and the execution, delivery and performance of all
transactions contemplated thereby (including without limitation this Agreement)
have been duly authorized by all necessary corporate action and will not result
in a breach of or constitute a default under the certificate of incorporation or
bylaws of the Company or any indenture, agreement or instrument to which either
is a party or is bound, (c) this Agreement has been duly executed and delivered
by the Company and constitutes a legal, valid, binding obligation of the
Company, enforceable against the Company in accordance with its terms, (d) the
Subscription Offer will comply in all material respects with all applicable
requirements of law and (e) to the best of their knowledge, there is no
litigation pending or threatened as of the date hereof in connection with the
Subscription Offer.
17. NOTICES
All notices, demands and other communications given pursuant to the terms
and provisions hereof shall be in writing, shall be deemed effective on the date
of receipt, and may be sent by facsimile, overnight delivery services, or by
certified or registered mail, return receipt requested to:
If to the Company: with an additional copy to:
Xxxxx Corporation Xxxx X. Xxxxx, Esq.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx &
Xxxxxxxxx, Xxxxxxxxxxx 00000 Wolosky LLP
Attn: Xxxxxx Xxxxx Park Avenue Tower
Tel: (000) 000-0000 00 Xxxx 00xx Xxxxxx
Fax: (000) 000-0000 Xxx Xxxx, Xxx Xxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Mellon: with an additional copy to:
Mellon Bank, X.X. Xxxxxx Bank, N.A.
C/O Mellon Investor Services X/X Xxxxxx Xxxxxxxx Xxxxxxxx
00 Xxxxxxxxxx Xx. 000 Xxxxxxxxxx Xx.
Xxxxxxxxxx Xxxx, X.X. 00000 Xxxxxxxxxx Xxxx, X.X. 00000
Attn: Relationship Administrator Attn: Legal Department
Tel: Tel:
Fax: Fax:
18. SPECIMEN SIGNATURES
Set forth in Exhibit 6 hereto is a list of the names and specimen
signatures of the persons authorized to act for the Company under this
Agreement. The Secretary of the Company shall, from time to time, certify to
Mellon the names and signatures of any other persons authorized to act for the
Company, as the case may be, under this Agreement.
19. INSTRUCTIONS
Any instructions given to Mellon orally, as permitted by any provision of
this Agreement, shall be confirmed in writing by the Company as soon as
practicable. Mellon shall not be liable or responsible and shall be fully
authorized and protected for acting, or failing to act, in accordance with any
oral instructions which do not conform with the written confirmation received in
accordance with this Section.
20. Fees
Whether or not any Certificates are surrendered to Mellon, for its services
as Subscription Agent and Information Agent hereunder, the Company shall pay to
Mellon compensation in accordance with the fee schedule attached as Exhibit 1
hereto, together with reimbursement for out-of-pocket expenses, including
reasonable fees and disbursements of counsel. All amounts owed to Mellon
hereunder are due upon receipt of the invoice. Delinquent payments are subject
to a late payment charge of one and one half percent (1.5%) per month commencing
forty-five (45) days from the invoice date.
21. TERMINATION
Either party may terminate this Agreement upon thirty (30) days prior
written notice to the other party. Unless so terminated, this Agreement shall
continue in effect until all Additional Shares of Common Stock have been
received and paid for by eligible holders. In the event of such termination, the
Company will appoint a successor Subscription Agent and inform Mellon of the
name and address of any successor Subscription Agent so appointed, provided that
no failure by the Company to appoint such a successor Subscription Agent shall
affect the termination of this Agreement or the discharge of Mellon as
Subscription Agent hereunder. Upon any such termination, Mellon shall be
relieved and discharged of any further responsibilities with respect to its
duties hereunder. Upon payment of all outstanding fees and expenses hereunder,
Mellon shall promptly forward to the Company or its designee any certificates
for Shares, Certificates, Election Forms, or any other document that Mellon may
receive after its appointment has so terminated.
22. FORCE MAJEURE
Mellon shall not be liable for any failure or delay arising out of
conditions beyond its reasonable control including, but not limited to, work
stoppages, fires, civil disobedience, riots, rebellions, storms, electrical,
mechanical, computer or communications facilities failures, acts of God or
similar occurrences.
23. MISCELLANEOUS
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to conflict of laws,
rules or principles.
(b) No provision of this Agreement may be amended, modified or waived,
except in writing signed by all of the parties hereto.
(c) Except as expressly set forth elsewhere in this Agreement, all
notices, instructions and communications under this Agreement shall be in
writing, shall be effective upon receipt and shall be addressed, if to the
Company, to its address set forth beneath its signature to this Agreement, or,
if to the Subscription Agent, to Mellon Bank, N.A. c/o Mellon Investor Services,
00 Xxxxxxxxxx Xxxx, Xxxxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Reorganization
Department, or to such other address as a party hereto shall notify the other
parties.
(d) In the event that any claim of inconsistency between this Agreement
and the terms of the Subscription Offer arise, as they may from time to time be
amended, the terms of the Subscription Offer shall control, except with respect
to Mellon's duties, liabilities and rights, including without limitation
compensation and indemnification, which shall be controlled by the terms of this
Agreement.
(e) If any provision of this Agreement shall be held illegal, invalid, or
unenforceable by any court, this Agreement shall be construed and enforced as if
such provision had not been contained herein and shall be deemed an Agreement
among the parties hereto to the full extent permitted by applicable law.
(f) This Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, the respective successors and assigns of the parties hereto.
(g) This Agreement may not be assigned by any party without the prior
written consent of all parties.
(h) Sections 13, 14, 15, and 20 hereof shall survive termination of this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year above written.
XXXXX CORPORATION
By:
------------------------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
Accepted as of the date above first written:
MELLON BANK, N.A.
AS SUBSCRIPTION & INFORMATION AGENT
By:
------------------------------------------------------------
Name:
Title:
Exhibit 1 Fee Schedule
Exhibit 2 Prospectus
Exhibit 3 Letter of Instruction
Exhibit 4 Notice of Guaranteed Delivery
Exhibit 5 Form of Certificate
Exhibit 6 List of Authorized Representatives
Exhibit 1
SCHEDULE OF FEES
AS SUBSCRIPTION AGENT
SET-UP & ADMINISTRATIVE FEE $10,000.00
PROCESS BASIC SUBSCRIPTIONS, EACH $15.00
ISSUING SUBSCRIPTION CERTIFICATES TO RECORD DATE HOLDERS, EACH $5.00
PROCESSING OVERSUBSCRIPTIONS, INCLUDING PRO-RATIONS & REFUNDS, EACH $10.00
ADDITIONAL HANDLING ITEMS, EACH $25.00
Including Notice of Guaranteed Deliveries, Withdrawals, Legal Items,
Correspondence, Partials, Defective Items, Lost Items,
Window Items, Items not providing a Taxpayer Identification
Number, Over-Subscriptions, Backup Withholding,
Multiple Checks (per check), Foreign Holders, etc.
ISSUING AND COLLECTING DUE BILLS, EACH $25.00
AFFIXING RESTRICTIVE LEGENDS ON CERTIFICATES, EACH $50.00
MIDNIGHT EXPIRATIONS, EACH (ONLY IF APPLICABLE) $5,000.00, each
Includes System Time, Security, Window Facility,
Post Office Pick Up, etc.
EXTENSION OF OFFER, EACH (ONLY IF APPLICABLE) $5,000.00, each
OFFICE OF FOREIGN ASSET CONTROL (OFAC) REPORTING, EACH HOLDER $1.00 per year
SPECIAL SERVICES, ONLY IF APPLICABLE:
* Additional Changes to the Shareholder File $50.00/account
(including transfer journal updates)
* Sale/Transfer of Rights Through Mellon $25.00/account
* Internal Attorney Review of the Agreement (if $1,000.00
there are any variations of the standard language)
* Conversion Delays/Mail Date Changes $500.00 each
* Programming Fees $250.00/hour
* Consultative Services $200.00/hour
* Archive Storage, per month $50.00
* Changes to Standard Documents By Appraisal
* Additional Special Services By Appraisal
OUT OF POCKET EXPENSES Additional
Including Postage, Printing, Stationery,
Overtime, Transportation, etc.
MINIMUM FEE, EXCLUSIVE OF SPECIAL SERVICES $30,000.00
If the aggregate amount of fees to be charged as described
above, exclusive of Special Services, Midnight Expirations,
Extensions of Offer, and Out of Pocket Expenses, is less than
$30,000.00, a total fee of $30,000.00 will apply.
SCHEDULE OF FEES
AS INFORMATION AGENT
INFORMATION AGENT FEE $7,500.00
FACILITY FEE $350.00 Per Week
EXTENSION FEE $1,000.00 per Extension
OUTGOING & INBOUND CALLS $39.50 per CSR hour
INBOUND CALLS TO IVR $1.95 per Call
PRINTING & LOGISTICS By Appraisal
(Any estimate is based on the current information)
MEDIA, DRAFTING & PROGRAMMING SERVICES $250.00 per hour
SPECIAL SERVICES, IF APPLICABLE
* Wall Street Journal National Edition By Appraisal
Advertisement
* New York Times Advertisement By Appraisal
* Additional Special Services By Appraisal
MELLON BANK, N.A.
SCHEDULE OF FEES
EXECUTIVE WHITE GLOVE SERVICE *(OPTIONAL)
Servicing Fee $1,000.00 per executive
Out of-pocket expenses Additional
MELLON'S EXECUTIVE WHITE GLOVE SERVICE ALLOWS CLIENTS TO PROVIDE SELECT
EXECUTIVES OR KEY SHAREHOLDERS WITH A PREMIUM LEVEL OF SERVICE. THIS SERVICE
INCLUDES DELIVERY OF CERTIFICATES AND ELECTION/TRANSMITTAL FORMS TO THE
ADMINISTRATOR OR PROJECT MANAGER; A PERSONAL CONTACT FOR SERVICE INQUIRIES;
RECEIPT OF FUNDS BY WIRE; AND CERTIFICATES RUSHED TO THE SHAREHOLDER BY
OVERNIGHT COURIER. IF THIS SERVICE IS NOT SELECTED, OUR PRICING CONTEMPLATES
THAT ALL SHAREHOLDERS WILL RETURN THEIR ITEMS IN ACCORDANCE WITH THE STANDARD
PROCEDURE OUTLINED IN THE SHAREHOLDER MATERIALS AND ALL INQUIRIES WILL BE MADE
TO THE PUBLISHED TOLL FREE TELEPHONE LINE. ADDITIONALLY, WITHOUT THIS SERVICE,
ALL SHAREHOLDERS WILL RECEIVE FUNDS BY CHECK AND CERTIFICATES WILL BE MAILED AND
ALL PROCESSING WILL BE IN ACCORDANCE WITH OUR NORMAL TIMEFRAMES AND PROCEDURES.
Exhibit 2
[PROSPECTUS]
Exhibit 3
[INSTRUCTIONS FOR USE OF SUBSCRIPTION CERTIFICATES]
Exhibit 4
[NOTICE OF GUARANTEED DELIVERY]
Exhibit 5
[SUBSCRIPTION CERTIFICATE]
Exhibit 6
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NAME SPECIMEN SIGNATURE
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Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
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Xxxxxx Xxxxx
/s/ Xxxxxx Xxxxx
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